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Judges question whether Texas abortion law has forced clinics to close

By Christy HoppeThe Dallas Morning News(MCT)

NEW ORLEANS — Appellate judges challenged lawyers Monday over provisions of Texas’ new abortion law and whether they have unduly caused the closure of about a dozen abortion clinics.

The three-judge panel of the U.S. 5th Circuit Court of Appeals bore down in particular on the shuttering of the only two abortion clinics in the Rio Grande Valley. The lack of facilities now requires women seeking the procedure to travel about 150 miles to a Corpus Christi clinic.

State Solicitor General Jonathan Mitchell defended the state law, saying the state has a right to regulate medical practices as a way to promote women’s health.

“The law does not impose an undue burden,” he told the court.

At issue are two provisions that went into effect last fall, requiring doctors to have admitting privileges at nearby hospitals and to administer abortion-causing medication under federal protocols that are no longer widely used.

But in a larger sense, advocates on both sides say, the case tests how far states can go to restrict abortion providers and impose hurdles upon women seeking the procedure. Republican-controlled states have imposed more than 200 new restrictions since 2011, according to one study.

The three judges hearing the case Monday are all appointees of Republican presidents. They wrote in a preliminary ruling that they believe the state will prevail in the case. The losing side can appeal to the full circuit court. After that, the next appeal would go to the Supreme Court, which both sides ultimately expect.

Doctors at some of the state’s 34 abortion clinics have failed to win admitting privileges at a hospital within 30 miles, as the law requires. That prompted 12 clinics to close. Since November, three have re-opened as doctors acquired admitting privileges.

Both the American Medical Association and the American College of Obstetricians and Gynecologists oppose the law, saying there is no medical need for doctors to have hospital privileges.

They point out such privileges are generally a matter of how many patients a doctor checks into a hospital, not a measurement of their abilities or standards of care in their practices.

“The admitting privilege law is not only unnecessary, it is not benign,” Janet Crepps, attorney for the Center for Reproductive Rights, told the judges.

She pointed out that the professional medical associations believe the statute “will jeopardize the health of women seeking abortions,” because it forces long travel and delays the procedure.

Judge Edith Jones was openly skeptical of the abortion rights arguments, saying 150 miles to Corpus Christi did not seem to raise a high hurdle. Jones noted the speed limit along the highway was 75 mph, and it was a particularly uncongested roadway.

She also pointed out that while abortion rights groups argued more than one-third of the doctors would have to quit practicing because of the new law, some of those doctors have been able to obtain admitting privileges.

She asked Crepps if she would inform the court when more doctors get privileges, adding cryptically: “Or have you notified The New York Times?”

Judge Catharina Haynes questioned whether the problem was a lack of doctors willing to perform abortions rather than the state’s imposing new conditions.

“There are many doctors who believe access to an abortion is essential to women’s health but who will not provide abortions themselves,” Crepps replied, citing fear of violence and harassment.

The second provision reviewed by the court is the requirement that doctors follow U.S. Food and Drug Administration protocols issued in 2000 for pills that induce abortions. Subsequent large clinical trials have revised use of those drugs, requiring much lower dosages and fewer, less severe side effects. But the new law blocks the newer drug regimens.

At question is whether doctors could use the newer pill regimens for women with certain health conditions that would make a surgical abortion risky.

GOP lawmakers have said their goal is to protect the health of women and to reduce the number of abortions. But abortion rights advocates say the law, enacted last summer and signed by Gov. Rick Perry, is intended to shut down clinics and hamper a woman’s ability to get a safe abortion.

Texas already required a 24-hour waiting period and mandatory sonograms with description of the fetal development. Also, women have to receive from clinics literature designed to persuade them to continue their pregnancies.

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